1. The Affidavit Of Support: I-134 Vs. I-864

Petitioners and visa applicants are sometimes confused about which Affidavit of Support they need to complete and submit – the Form I-134 or Form I-864. Many are also confused as to when and to whom they need to submit the affidavit of support. This article will provide a brief overview of the two Affidavits of Support are when each should be used.

The Form I-864, Affidavit of Support Under Section 213A of the INA, is required to be filed by the petitioner/sponsor for almost all family-based immigrants, and in some instances, for employment-based immigrants, to show the intending immigrant will be financially supported and is unlikely to become a public charge once her or she has immigrated to the US.

The Form I-134 Affidavit of Support is a simpler form that is most often used in in the nonimmigrant visa context and is also used to show that the visa applicant will not become a public charge and has access to sufficient funds during his or stay in the U.S.

2. Form I-134 Affidavit Of Support – A Closer Look

Let’s start our review with the Form, I-134 Affidavit of Support. The purpose of this form is to help demonstrate that the foreign national you are sponsoring will not become a public charge while in the US. The Form I-134 is generally used to support nonimmigrant visa applications.

The Form I-134 is generally required with all K-1 and K-3 nonimmigrant visa applications and must be submitted by the U.S. citizen fiancé(e) or spouse. The Form I-134 can also be used by F-1 or B-1/B-2 visa applicants if they need to show financial support from outside sources in the U.S.

The Form I-134 is not accepted for immigrant visa cases except in the case of Diversity Visa applicants, who can submit a Form I-134 if they need to prove that they will not be public charges in the event they don’t have enough assets or a job offer.

3. Form I-134 Affidavit Of Support – Evidence Of Sufficient Income

Applicants using the Form I-134 typically will need to show that their sponsor’s income meets federal poverty guidelines. Failure to provide evidence that shows sufficient income or financial resources may result in denial of the foreign national’s visa application.

Documents that should be submitted include:

1.Copy of the most recent federal tax return and Form W-2, if applicable

2.Employment Letter, and

3.Evidence of listed assets, if assets were used instead of or in addition to the income. Examples include:

a.Copy of bank statements

b.Copy of deed

c.Evidence of investments

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4. Submission Of Form I-134

The form is generally submitted directly to the consular officer at the time of the interview. Failure to completely fill out the form, or file it without required initial evidence, may result in the denial of the application.

Filing Fee

There is no filing fee or processing fee for the Form I-134 Affidavit of Support.

5. Form I-864 Affidavit – A Closer Look

Now let’s turn our attention to Form I-864, Affidavit of Support. As noted above, this is a much more extensive form, and once filed, is legally binding on the sponsor.

The Form I-864 is required in almost all family-based immigrant visa and adjustment of status cases, whether the foreign national is an immediate relative of a US citizen, or a relative who qualifies under one of the family-based preference categories. If you have filed an immigrant visa petition for your relative (Form I-130), you must act as their sponsor for Form I-864 purposes.

6. Form I-864 Affidavit – Who Can Be A Sponsor?

To act as an I-864 sponsor, you must be at least 18 years old and be a US citizen or a lawful permanent resident. You must have a domicile in the US or a territory of the United States. If you live abroad, you may still be able to sponsor if you can show that your residence abroad is temporary and that you still have a domicile in the US.

If you, as the petitioner, cannot meet the income guidelines for a sponsor (described below) you may be able to utilize a Joint Sponsor. The joint sponsor (or co-sponsor) is any other individual who meets the minimum eligibility requirements described herein who is willing to take financial responsibility for the intending immigrant along with you. If needed, more than one joint sponsor can be used.

Exceptions To Sponsorship Requirement

There are exceptions to the sponsorship requirements. There is no need to submit a Form I-864 Affidavit of Support if the intending immigrant can show either:

the intending immigrant has already worked, or can be credited with, 40 qualifying quarters as defined in Social Security Act, or

the intending immigrant is the child of a US citizen and that the intending immigrant will automatically acquire citizenship under Section 320 of INA, as amended by the Child Citizenship Act of 2000, upon admission to the US (Form I-864W must be submitted in lieu of the I-864).

DID YOU KNOW? If an I-130 has been approved by USCIS, what happens if the Petitioner dies?

Under the regulations, the petition is automatically revoked if the petitioner dies before the beneficiary obtains the immigrant visa or adjusts status. However, the regulations allow for “humanitarian reinstatement” of the I-130, if in addition to certain other criteria, the beneficiary has a “substitute sponsor”- a relative who can stand in the place of the original petitioner to submit the Form I-864, Affidavit of Support.

7. Form I-864 Affidavit – Evidence Of Sufficient Income

Applicants using the Form I-864 typically will need to show that their sponsor’s income is 125 percent of federal poverty guidelines. Failure to provide evidence that shows sufficient income or financial resources may result in denial of the foreign national’s immigrant visa application or adjustment of status.

Documents that should be submitted include:

1.Copy of the most recent federal tax return and Form W-2, if applicable

2.Employment Letter or recent pay stubs, and

3.Evidence of listed assets, if assets were used instead of or in addition to the income. Examples include:

a.Copy of bank statements

b.Copy of deed

c.Evidence of investments

8. Submission Of Form I-864

The Form I-864 must be submitted before an immigrant visa number can be issued.

If the foreign national beneficiary is outside the U.S. and applying for a visa at the US Consulate or Embassy, the Form I-864 and supporting evidence must be submitted to the National Visa Center.

If the foreign national beneficiary is in the U.S. and will be filing for Adjustment of Status, the Form I-864 and supporting evidence should be submitted with the Adjustment of Status application.

Filing Fee

There is no filing fee for the Form I-864, Affidavit of Support. However, the National Visa Center does charge an Affidavit of Support fee of $120 to review and process the form for those seeking an immigrant visa at the US Consulate or Embassy.

9. Enforcement Of Form I-864 Affidavit Of Support

If the sponsored immigrant uses federal or state means-tested public benefits, the sponsor can be held responsible for repaying the cost of the benefits received. Federal means-tested benefits currently include:

Food stamps

Supplemental Security Income (SSI)

Medicaid

Temporary Assistance for Needy Families (TANF)

State Child Health Insurance Program (sCHIP)

The legal obligations under the Form I-864 will remain in effect for 10 years from the date of the grant of lawful permanent residence or until the beneficiary obtains US citizenship.

My Case ScenarioContinued…

Now that we have had a brief overview of the Form I-134 and I-864, let’s take a look back at our cases above.

Since David’s fiancée is applying for the K-1 visa at the US Consulate, David must furnish an I-134.

Tatyana will need to send the NVC an I-864 once requested as her husband will be seeking an immigrant visa as an immediate relative of a US citizen.

Matthew will need to send in the I-864 to the US Consulate in Germany when requested on behalf of his spouse as he can take advantage of Direct Consular Filing.

If Julianne’s cousin does not have the financial means to support herself or pay for the trip to visit Julianne, Julianne will need to provide her cousin with an I-134 for her B-2 visa interview.

Conclusion

A financial Affidavit of Support is required when you sponsor a relative to live permanently in the United States, and may be required when you invite friends and relatives to visit you in the US. The affidavit of support is designed to demonstrate that the foreign national you are sponsoring will not become a public charge while in the United States.

Form I-134 affidavit of support is generally used when the visa sought is a nonimmigrant visa while the Form I-864 affidavit of support is required when the foreign national is applying for an immigrant visa, either at a US consulate or through adjustment of status with the USCIS.

How your affidavit of support is completed, and the evidence that is attached in support of it is critical to the success of the visa application process.

If you have any questions regarding which financial affidavit of support you need to file, or wish to explore the green card options, our top immigration lawyers will be happy to assist you. Schedule A Free Consultation Today >>

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